The question of whether to enhance shared parental pay for fathers has featured in case law this year

The decision by the Supreme Court that the employment tribunal fees system is unlawful may be one of the most monumental employment law decisions this year, but there have been a number of other significant cases. Laura Merrylees looks at six of the top employment law decisions in 2017, and a few decisions to look out for in the future.

1. Challenge to employment tribunal fees

In a remarkable turn of events, Unison’s challenge to the employment tribunal fees system succeeded at the final hurdle.

In a damning indictment of the use of high fees to reduce the number of cases, seven Supreme Court judges decided unanimously that the employment tribunal fees system is unlawful and the legislation that introduced the fees must be quashed.

The case has been described as one of the most important judgments in the history of UK employment law, and an important constitutional case, reiterating that the Government cannot use its powers to block citizens’ access to justice.

It will now have to pay back around £32 million to claimants who have already been charged a fee since they were introduced in 2013.

2. Long-term sickness absence and disability

This Court of Appeal decision reflects a growing trend in the number of claims based on discrimination arising from disability.

Ms O’Brien was dismissed by her employer following a period of long-term sickness absence.

At her internal appeal hearing, Ms O’Brien presented her employer with medical evidence indicating that she was fit to return to work. However, the appeal panel was not convinced by this and upheld the dismissal.

While the case was in the Court’s view “near the borderline”, the Court nevertheless found that it was unreasonable for the school to disregard new evidence without a further medical assessment.

In practice, before making a decision to dismiss, employers should consider whether or not they can be expected to wait any longer and, if so, how much longer.

The claimant issued a claim in the employment tribunal following his employer’s refusal to enhance his pay during a period of shared parental leave.

He complained that this amounted to direct sex discrimination given his employer’s policy to enhance maternity pay.

The employment tribunal upheld his claim, commenting that the role of primary carer is a matter of choice for the parents, but that the choice should be free of “generalised assumptions” that the mother is always best placed to undertake the primary role and should get full pay.

As the case is a first-instance decision and therefore not binding, employers will have to wait for an appeal court decision before greater certainty is provided.

It has been reported that the claimant’s employer, Capita, will appeal the decision.

Employment law cases 2017: podcasts

However, another Advocate General in the French reference in Bougnaoui thought that an employer could not have a blanket ban on religious dress purely because neutrality is required or a client or customer objects.

In the Achbita case, the ECJ decided that as long as rules on religious dress are applied consistently across the board, a blanket ban is not directly discriminatory but could potentially be indirectly discriminatory if not justified.

However, in Bougnaoui, the ECJ decided that the one-off removal of an employee who wears a religious item cannot be defended purely on the basis that a customer objects and that a defence is only available in very limited circumstances.

In practice, employers need to be wary of relying on these cases. Both involve French and Belgian laws and will now need to be decided in the domestic courts of France and Belgium, applying the ECJ guidance.

The Government changed whistleblowing laws in 2013 to provide that a disclosure is not protected unless the employee reasonably believes that the disclosure is being made “in the public interest”.

This was to prevent workers using the legislation to make protected disclosure claims in relation to complaints about their employment contracts.

The Court of Appeal concluded that the statutory test of what is “in the public interest” does not lend itself to absolute rules and the employment tribunal should take a number of factors into account.

These factors include the numbers of employees involved and the importance of the interest affected.

For a claim to pass the public interest test, the whistleblower must have a genuine belief that the disclosure was in the public interest, even if it later becomes clear that the belief was mistaken.

Three employment law decisions still to come

Later this year, we are expecting further significant decisions on employment status, holiday pay and social media monitoring.

2. Annual leave

This case represents yet another stage in the ongoing saga of holiday-related claims.

In this case, the Employment Appeal Tribunal (EAT) suggested that workers should be allowed to carry over untaken holiday into the next year if they are genuinely prevented from doing so for “reasons beyond their control” other than sick leave.

Following an appeal to the Court of Appeal, the case has now been referred to the European Court of Justice (ECJ).

The Advocate General’s non-binding opinion in the case was given on 8 June 2017.

The Advocate General thought that, where an employer has not provided a worker with paid leave, the worker’s right to paid leave carries over until he or she has the opportunity to exercise it.

No date has been set for delivery of the full binding ECJ decision.

3. Monitoring employees’ social media

In this Romanian case, the European Court of Human Rights (ECHR) examined the scope of employees’ right to a private life in relation to social media activity.

An engineer who was dismissed for using Yahoo Messenger to chat with his family, as well as professional contacts, challenged his employer’s actions as a breach of the European Convention on Human Rights.

However, the ECHR held that the employer’s actions were justified because it was seeking to verify that the employee was using his work computer and social media account for work purposes only.

This case was referred to the ECHR’s Grand Chamber. The hearing took place on 30 November 2016 and a judgment is awaited.